State Records Committee Appeal 2010-15

By this appeal, Petitioner, Nasrulla Khan, seeks copies of investigative records allegedly held by Respondent, the Utah Department of Public Safety.

FACTS

On February 16, 2010, pursuant to the Government Records Access and Management Act (“GRAMA”), Mr. Khan requested all documentation regarding his 2002 complaints to the Department of Public Safety (“DPS”) about alleged terrorist acts being committed against him. On March 17, 2010, Sherri Green, an officer with the State Bureau of Investigations, responded to the request by sending Mr. Khan three documents, including a copy of report number 2003-0876, which consisted of header information and a few lines of text. Believing report 2003-0876 to be incomplete, Mr. Khan filed an appeal with DPS Commissioner Lance Davenport, expressing concern that he had not received a full copy of the report and asking Commissioner Davenport whether there were any additional records that would be responsive to his request. In a letter dated April 15, 2010, Commissioner Davenport assured Mr. Khan that the report he had received was complete and declined to resend the materials, pursuant to Utah Code Ann. § 63G-2-201(8)(a)(iv), which allows a government entity to deny a person's records request “if the request unreasonably duplicates prior records requests from that person.”

Mr. Khan now appeals to the Utah State Records Committee (“Committee”). The Committee having reviewed the evidence and arguments submitted by the parties, and having heard oral argument and testimony on July 8, 2010, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code Ann. § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See Utah Code Ann. §§ 63G-2-302, 303, 304, and 305.

2. A person making a request for a record shall furnish the governmental entity with a written request containing a description of the record requested that identifies the record with reasonable specificity. Utah Code Ann. § 63G-2-204(1)(b). As soon as reasonably possible, the governmental entity shall respond to the request by: (1) Approving the request and providing the record; (2) Denying the request; (3) Notifying the requester that it does not maintain the record and provide, if known, the name and address of the governmental entity that does maintain the record; or (4) Notifying the requester that because of extraordinary circumstances, it cannot immediately approve or deny the request. Utah Code Ann. § 63G-2-204(3)(a).

3. Under GRAMA, a governmental entity is not required to “create a record” or fulfill a person's records request “if the request unreasonably duplicates prior records requests from that person.” Utah Code Ann. § 63G-2-201(8)(a)(i-iv).

4. Concerning record 2003-0876, DPS asserted during the hearing that all documents responsive to Mr. Khan’s requests had already been produced. DPS claimed that a diligent search for the requested records had been conducted and no additional records were found that met the criteria of the requests. DPS also claimed that the entirety of report 2003-0876 was comprised of a single page. Therefore, despite Mr. Khan’s insistence that the report should be longer, it could not provide Mr. Khan a record it did not possess.

5. Mr. Khan disagreed with DPS’s claims and contended that DPS still possessed records responsive to his request for records of the DPS’s investigation of his 2002 claims. Mr. Khan claimed that since DPS denied having any records in response to his 2005 GRAMA request and then later produced three documents during the 2008 district court proceedings, DPS was engaged in a “cover-up” and was withholding information regarding his terrorism allegations. Mr. Khan supported his claim by claiming that the documentation he received from DPS did not contain a copy of the letter he had sent to Governor Leavitt’s office, nor a copy of the letter Mr. Miller mentioned in report 2003-0876, and, therefore, was not complete.

6. In response, DPS stated that the record in dispute was created in 2005 to make note of the fact that someone in DPS had given information to the attorney in the district court proceeding regarding Mr. Khan’s 2002 claims. Because of this, report 2003-0876 is not an investigative record as much as it is a documentation of actions taken by an officer of DPS. With regard to the letters, DPS was not required to keep copies of documentation concerning discontinued investigations.

7. After reviewing Mr. Khan’s written GRAMA requests, hearing the arguments and testimony of the parties, and reviewing the evidence presented, the Committee finds that DPS provided all the records it possessed responsive to Mr. Khan’s February 2010 GRAMA request. The Committee is not persuaded that DPS possesses additional documents and/or has purposely withheld documents from Mr. Khan. Accordingly, the Committee cannot order DPS to produce documents it can not find or does not possess. See, Utah Code Ann. § 63G-2-403(12).

ORDER

THEREFORE, IT IS ORDERED THAT: the appeal of Petitioner, Nasrulla Khan, is dismissed because: (1) The Utah Department of Public Safety has already provided Mr. Khan with a copy of report 2003-0876, and (2) Mr. Khan has not presented sufficient evidence to show that further records still exist and are being withheld by DPS.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the District Court. The petition for review must be filed no later than thirty (30) days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and Utah Code Ann. § 63G-2-404. The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code Ann. § 63G-2-403(14)(d), the governmental entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file: (1) a notice of compliance with the Committee upon production of the records; or (2) a notice of intent to appeal. If the governmental entity fails to file a notice of compliance or a notice of intent to appeal, the Committee may do either or both of the following: (1) Impose a civil penalty of up to $500 for each day of continuing noncompliance; or (2) Send written notice of the entity's noncompliance to the Governor for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies’ entities.